September 18, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HERBERTO CORTES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-02-0486-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2007
Before Judges Stern and Collester.
Tried to a jury, defendant was found guilty of third-degree aggravated assault as a lesser-included offense, simple assault as a lesser-included offense, and two weapons offenses. He was acquitted of sexual contact. The defendant was sentenced as a persistent offender to eight years imprisonment with four years to be served before parole eligibility on the aggravated assault and to a concurrent three-year term on the possession for an unlawful purpose conviction. The other convictions were merged.
On this appeal defendant argues the following:
POINT I - THE DEFENDANT'S CONVICTIONS MUST BE REVERSED AS THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
POINT II - THE DEFENDANT'S PERSISTENT OFFENDER SENTENCE OF EIGHT YEARS FOR A THIRD-DEGREE OFFENSE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
POINT III - THE MATTER MUST BE REMANDED FOR RESENTENCING PURSUANT TO STATE V. PIERCE.
We reject these contentions and conclude that only the following discussion is warranted. R. 2:11-3(e)(2).
According to Carmen Martinez, defendant touched her "private parts" when they left a public park to buy beer. She testified that "he went right under my skirt and touched my p____." He later attacked her with a chair back in the park after she rejected his advances. According to Martinez, he hit the left side of her face and shoulder with the chair, and knocked her to the ground and kicked her. She suffered ankle and other injuries, and still had scars from the attack.
The testimony about the assault did not rely on Ms. Martinez alone. Her nephew, Daniel Torres, also testified that defendant touched her vagina and "smack[ed] her in her ass."
Even if the jury did not believe the claim that defendant touched Ms. Martinez in the vagina, the acquittal of sexual assault does not affect the assault or weapons convictions. The jury could find that defendant caused, or attempted to cause, significant bodily injury and possessed the chair for an unlawful purpose. See State v. Reyes, 50 N.J. 454, 459 (1967).
The sentence was imposed shortly after the opinion in State v. Pierce, 188 N.J. 155 (2006). While the judge did not perform a Pierce analysis or state she could impose a sentence from the bottom of the ordinary term to the top of the extended, she was aware of the decision by reference to the recent companion case of State v. Thomas, 188 N.J. 137 (2006). We also note the judge imposed concurrent sentences.
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